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Saturday, 20 August 2016

Whether mother can withdraw main petition after obtaining custody of child at interim stage?

Now, an issue concerning appointment of a guardian focuses on thewelfare of the child. The warring couple are not the parties affected. Theymay be parties interested. The affected party is the child. Thus, where onespouse files an application to be appointed as a guardian of the child whichis opposed by the other and if the interim custody of the child is with thepetitioner spouse, if the petitioner spouse seeks to withdraw the petition therespondent spouse can seek transposition, for the reason having takenadvantage of interim orders the petitioner spouse cannot thumb the nose atthe respondent spouse. IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision : August 17, 2016MAT.APP.(F.C.) 99/2014SOMESHWAR DAYAL versusANUPAMA DAYAL ..CORAM:HON’BLE MR. JUSTICE PRADEEP NANDRAJOGHON’BLE MS. JUSTICE PRATIBHA RANI

1. For the reasons stated in the two applications 30 days’ delay in filingthe reply and 61 days’ delay in re-filing the reply to CM No.8462/2016 iscondoned.2. Both applications are disposed of.CM No.8462/20161. Developments statedly having taken place during pendency of theappeal are sought to be brought on record.2. The application is allowed.

1. An interesting question arises for consideration and regretfully the respondent has chosen to abstain from appearing. None appeared for therespondent yesterday. The appeal was re-notified for today. None appearsfor the respondent even today.2. The interesting question which arises is : whether a spouse who seekscustody of the children by moving a petition under Section 25 of theGuardians and Wards Act and obtains interim orders can one day withdrawthe proceedings and continue to take benefit of the interim orders? Thequestion would subsume the question : whether the other spouse can seek tobe transposed as the petitioner?3. The respondent filed a petition under the Guardians and Wards Actseeking a declaration to be declared the sole guardian of Master Neel andBaby Teesta. The former being a male and the latter a female. She obtainedthe interim orders in her favour and on the strength thereof she put thechildren in Sri Ram School, Gurgaon. On the strength of the same sheremoved the children from Sri Ram School, Gurgaon and got them admittedat Sela Qui International School, Dehradun. After the issues were settled therespondent filed an application to withdraw the petition filed by her. Theappellant opposed the petition pleading that having taken advantage ofinterim orders passed in the petition the respondent cannot simply walk out.The learned Judge Family Court allowed the respondent to withdraw thepetition. The impugned order is dated July 28, 2014.4. From the documents filed by the appellant we find that even post July28, 2014 the respondent is taking the benefit of the interim orders in herfavour. Writing letters to the Principal of Sri Ram School, Gurgaon therespondent has successfully ensured that the father cannot meet the childrenin the school. At Sela Qui, which is a boarding school, on the strength of theinterim order the respondent has ensured that the school authorities do not give any access to the appellant to the children. The letters and the e-mailsshown to us evince that the school authorities are apprehensive of legalaction taken by the respondent against them if without respondent’s consentthe school authorities permit the appellant to meet the children who, as notedabove are in a boarding school. We find that as recent as on May 10, 2016the respondent has written to the school that without her permission theschool authorities cannot permit any interaction between the appellant andthe children. She asserts her right on the strength of interim orders obtainedby her during the pendency of the guardianship petition.5. Now, an issue concerning appointment of a guardian focuses on thewelfare of the child. The warring couple are not the parties affected. Theymay be parties interested. The affected party is the child. Thus, where onespouse files an application to be appointed as a guardian of the child whichis opposed by the other and if the interim custody of the child is with thepetitioner spouse, if the petitioner spouse seeks to withdraw the petition therespondent spouse can seek transposition, for the reason having takenadvantage of interim orders the petitioner spouse cannot thumb the nose atthe respondent spouse.6. We allow the appeal and set aside the order dated July 28, 2014.Guardianship Petition No.25/11 before the Principal Judge Family CourtSakes Court Complex is restored with the appellant transposing as apetitioner therein. The respondent is transposed as a respondent therein.We declare that the interim orders obtained by the respondents have lapsedand on the strength thereof the respondents cannot assert any right.7. Concerning visitation by the appellant to meet his children in theboarding school where they have been admitted by the respondent thelearned Judge Family Court shall pass appropriate orders after serving therespondent and interacting with the children.8. No costs.(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGEAUGUST 17, 2016